The job of United States consular officers is to prevent undesirable aliens from obtaining visas to the United States. But sometimes the consular officers are a bit too enthusiastic about weeding out potential asylum seekers.

In an Ethiopian asylum case I litigated earlier this week, the DHS attorney submitted as impeachment evidence a consular officer’s assessment of my client, who was interviewed at the consulate for a non-immigrant visa. After describing why my client needed a visa (for a heart operation in the U.S.), the officer wrote:

Applicant swears she does not intend to seek asylum or stay in the US longer than needed, and has no problems that would prevent her from returning to Ethiopia. If she files an asylum claim, it is fraudulent.

The conclusory last sentence is what really bothers me–”If she files an asylum claim, it is fraudulent.” The consular officer does not know whether my client’s situation will change, or whether the situation in her country will change. His statement seems to be simply an effort to prevent her from gaining asylum under any circumstances. Not only is this unfair, but it contradicts established case law. The BIA has held that an asylum seeker who lies to obtain a visa in order to escape her country is not ineligible for asylum once she gets to the United States, though the misrepresentation may be considered an adverse factor depending on the circumstances. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987).

On the surface the argument appears rational. Situations do change in a nation. Traumatic events do occur in nations. Suppose an Egyptian Copt applied for a visa a year ago and was asked if he was planning to apply for asylum in the U.S.? There is a good chance that the answer would have been no. There is also a good chance the answer would have been yes, but for the sake of argument we will not debate how the Copts were treated or mistreated under the Mubarak dictatorship, but only with subsequent events. In our hypothetical case the subsequent event was very real. The so-called Arab Spring or more rightly the Muslim Brotherhood Coup d`Etat. The results for Christians in Egypt has been disastrous. However it illustrates the point, events do occur that may affect the necessity of an asylum application after lawful entry.

It also illustrates the issue our anonymous Consular Officer was concerned about. The use of non-immigrant visas and asylum to obtain legal permanent residence in the United States. And in our hypothetical case of the Coptic Christian from Egypt we also have the same problem. A truly discerning Consular Officer would have the same issue. Copts suffered even under the ancien regime from many disabilities and outright oppression that would qualify them for refugee or asylum status in the United States.

(A) any person who is outside any country of such person`s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or

And for political convenience:

(B) in such circumstances as the President after appropriate consultation (as defined in section 207(e) of this Act) may specify, any person who is within the country of such person`s nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term "refugee" does not include any person who ordered, incited, assisted, or otherwise partcipated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this Act, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

(1) In general. - Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien`s status, may apply for asylum in accordance with this section or, where applicable, section 235(b).

But back to the Treason Bar. They recognize there is a problem, perverse incentives they call it, but gloss over it:

Matter of Pula recognizes that people fleeing persecution often say or do unsavory things in order to escape danger. Granted, such case law creates a perverse incentive–if you are able to lie your way past the consular officer, you can claim asylum in the United States–but what is the alternative? If a person honestly admits a fear of persecution in his country, the officer will deny the visa.

What the Treason Bar does not mention is that those who truly have a problem with a well-founded fear of persecution who are outside the United States can apply for refugee status.

And take the case of our unidentified Ethiopian. There were 668 admissions as refugees in 2010 of Ethiopians. There were 1,093 Ethiopians who entered the United States with non-immigrant visas who then later applied for and were granted asylum. Certainly a perverse incentive for fraud. But more importantly a perverse success with fraud. If there is any accurate review of the conditions for an individual regarding actual persecution, a Consular Officer in Ethiopia will make a more accurate decision than either an Asylum Officer or Hearing Officer with the Executive Office for Immigration Review (EOIR). A Consular Officer is closer to the facts on the ground and more able to accurately judge credibility than a reviewer in the United States. A Consular Officer can and will send out investigators to observe actual behavior of government officials, interview witness and dis-interested third parties. None of that occurs during a review of an asylum application. Embassies and Consulates also have confidential sources of information in host governments, non-governmental organizations, political parties, and civic organizations in-country. Such information is limited in quality and validity in the United States as there is little or no ability to verify any information submitted by individual applicants, the Treason Bar, or their support organizations in the United States for validity and to remove bias or uncover an agenda.

In fact, the asylum process in the United States is highly politicized with EOIR officials having their own agenda, as opposed to Consular Officers who are more fact based. They see the reality while EOIR sees what they want to see.

The Treason Bar claims that DHS has validated the fraud:

And by the way, at least in my case, the consular officer’s effort to stop my client from obtaining asylum did not work. The Immigration Judge granted asylum and the DHS attorney agreed not to appeal.

But we do have a kernel of truth from the Treason Bar. There is a perverse incentive in asylum cases to fraud. However their solution is to accept fraud. The real solution is present in the law. If you are outside the U.S. and suffer from demonstrable persecution, then apply for refugee status. Asylum status should be limited to those aliens inside the United States where there is a significant event that impacts possible persecution, such as a Muslim Brotherhood coup d`etat. Otherwise there is generally no reason to allow asylum claims.

A solution to the validity of claims could also be a polygraph exam. But I am certain no member of the Treason Bar wants their client subject to an objective determination of a measurement of physiological response to deception.

But it is important to realize that the Treason Bar`s fraudulent asylum claims are just part of electing a new people. The goal is not the truth of a matter, but the election of a new people, by hook or by crook. The first thing one should demand from a prospective immigrant is truthfulness. If they would lie to a Consular Officer to obtain a non-immigrant visa so as to enter the United States to apply for asylum, one is led inextricably to the obvious conclusion, they will lie about anything to remain in the United States. That means that any claim made afterwards is most likely another lie. Dishonesty is the last thing that should be tolerated.

Of an interesting note on the Treason Bar`s representative Ethiopian, I am certain that the Ethiopian in question did not make their asylum claim at a Port-of-Entry. If this Ethiopian was truly fleeing persecution, claiming asylum would be the first thing he or she would do. But most likely they did it well after entry, most likely after they started working illegally or their period of admission expired. That is the pattern. A honest person would have told the inspecting Customs and Border Protection Officer at the airport that their purpose was asylum. For there has been no significant political event in Ethiopia like a Muslim Brotherhood coup d`etat. Fraud dear reader is endemic is asylum and the Treason Bar are abettors.